Aliev v. Ukraine

The applicant was arrested and detained in Krasnodar, Russia and was transferred to a detention facility. The applicant was convicted of conspiring and carrying out organized crime, aiding and abetting and attempting murder. He was sentence to death by the Criminal Division of the Supreme Court. On the same day he was moved to cells designated for death sentence convicts. The Constitutional Court held that the provisions of the Criminal Code concerning death penalty were contrary to the constitution and hence the death penalty was abolished. All the pending death penalty was substituted by life imprisonment. The applicant stated that he was not informed about the terms of his imprisonment and his rights such as visitation hours. He alleged that he was also kept in isolation and not allowed to go for his daily walk for 10 days and was further not allowed to buy food from the prison shop. On one occasion he was also prevented from meeting his children. He alleged that the health conditions were not adequate. The applicant’s complaint of diarrhea was not paid any attention to, nor was his complaints about heart-pains, headaches and toothaches. The applicant alleged a violation of Article 3 of the European Convention of Human Rights (prohibition of inhuman and degrading treatment). The applicant also alleged that there had been a violation of Article 8 of the Convention (right to family and private life).

The Court held that there has been a violation of Article 3 of the Convention with respect to the conditions of the detention when he was on a death row. The Court stated that that the applicant was not aware of his rights and obligations. It was also observed that the applicant was kept in a cell, which had no provision of communicating with other inmates and there was no access to daylight. Further, he was not allowed to go for his daily walks and was handcuffed if he was allowed to do so. However, the court could not find any evidence of inadequate medical attention. The Court further held that there has been a violation of Article 8 of the Convention only to the respect of applicant’s right to receive correspondence from his wife on one occasion. The Court also noted that the applicant had been denied intimate contact with his wife and the prison authorities did not deny the same. The Court stated that in this regard European countries were taking steps for facilitating conjugal visits but refusal of such visits could be justified for the time being for the prevention of disorder and crime.

“The Court has also noted above that since May 1999 the applicant had started to receive parcels and had been able to buy more items in the prison shop. The applicant confirmed that he was allowed to receive one parcel and two small packets every two months (see paragraph 21 above. The Court considers that the above-mentioned restrictions by the public authorities interfered with the applicant's right to respect for his correspondence guaranteed under Article 8 § 1 of the Convention and that those restrictions can be justified only if the conditions of the second paragraph of that provision are met. In particular, if it is not to contravene Article 8, such interference must be “in accordance with the law”, pursue a legitimate aim and be necessary in a democratic society in order to achieve that aim (see Silver and Others v. the United Kingdom, judgment of 25 March 1993, Series A no. 61, p. 32, § 84; and Petra v. Romania, judgment of 23 September 1998, Reports 1998-VII, p. 2853, § 36).The Court must first consider whether the interference was “in accordance with the law”. This expression requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law (see Kruslin v. France and Huvig v. France, judgments of 24 April 1990, Series A no. 176-A, p. 20, § 27, Series A no. 176-B, p. 52, § 26, respectively). (Para 167-170)

“The Court finds that in these circumstances it cannot be said that the interference with the applicant's right to respect for his correspondence was “in accordance with the law” as required by Article 8 § 2 of the Convention. It is true that the Instruction was replaced by the Temporary Provisions, approved by the State Department for Execution of Sentences on 25 June 1999 as Order no. 72 and registered by the Ministry of Justice on 1 July 1999 as no. 426/3719, which entered into force on 11 July 1999 and are accessible to the public. However, the Temporary Provisions have no application to the facts occurring before 11 July 1999.” (Para 177)